Cawley, R (on the application of) v Parole Board & Anor

Article 5(4) requires systems enabling Parole Board hearings to be arranged speedily. Whether that requirement is met depends on all the material circumstances and whether the authorities proceeded with reasonable despatch. The assessment is fact-sensitive, so decisions on delay in other cases provide limited assistance.

Speed must be balanced against fairness to the prisoner and the public. The Board may seek further information and actively case-manage a hearing where necessary to assess risk fairly. Delay attributable to late evidence, witness unavailability or proceedings initiated by the prisoner will generally not be laid at the authorities’ door. A shortage of panel members may nevertheless justify declaratory relief for an unjustified period of delay.

The claimant, serving a life sentence for murder, sought judicial review of delay in arranging a Parole Board hearing concerning his continued detention. His tariff had expired, and a hearing listed for July 2007 was adjourned after late service of expert psychological evidence and criticism of an existing report.

The Board then directed further psychiatric and psychological evidence concerning the claimant’s historic psychiatric treatment and risk. The October hearing was subsequently deferred after the claimant’s expert witness became unavailable and because these judicial review proceedings were pending. The hearing was due to take place in January 2008. The central issue was whether the delay after mid-August 2007 breached Article 5(4).

1. Outcome. The application succeeded only to the extremely limited extent that the delay from early December 2007 until the hearing in January 2008 was unjustified under Article 5(4). No further order was made, and there was no order as to costs.
2. Speedy decision requirement. The defendants had to maintain systems enabling hearings to be arranged speedily. Applying R (Hirst) v Secretary of State for the Home Department [2005] EWHC 1480 (Admin), the question was whether, having regard to all the material circumstances, there had been a failure to proceed with reasonable despatch. The assessment was necessarily fact-sensitive.
3. Fair case management. Speed did not displace the overriding need for a fair hearing, both for the prisoner and for the public. The Board was entitled, and should generally be encouraged, to request further information where necessary to assess potential risk factors and to manage cases actively.
4. Application to the facts. The Board acted reasonably in seeking details of the claimant’s historic psychiatric treatment and further psychiatric evidence. A hearing in mid-August would have been unrealistic because records had to be collected, reviewed by a psychiatrist, followed by an examination and report, and sufficient time had to be allowed for the parties to consider the evidence. The late service of the claimant’s expert evidence justified the July adjournment.
5. The claimant’s solicitors later requested postponement because their witness was unavailable and because the judicial review was pending. Those periods of delay could not fairly be criticised by the claimant. The Board was entitled to reasonable time to arrange a hearing after the witness became available.
6. After early December, however, the inability to arrange a hearing before Christmas resulted from a shortage of Parole Board members. That period was not justified under Article 5(4), although most of the preceding delay had been caused by the claimant’s own conduct.

The judgment records that on 13 July 2007 Collins J, on the papers, was not persuaded that Article 5(4) had already been breached, but considered whether October represented too long a delay to be arguable. The present court subsequently determined the substantive judicial review claim.